Both ITPGRFA and the Nagoya Protocol target conservation and sustainable use of plant genetic resources as well as the equitable sharing of benefits arising from their use. These agreements, which lay out the framework for ABS, are to be read in harmony with CBD, which inspired them.

ITPGRFA is recognized as a specialized instrument underArticle 4of the Nagoya Protocol. Specifically, the scope of this treaty is limited to genetic resources for food and agriculture. It facilitates access and exchange of a specified list of crops through a multilateral system of access and benefit sharing thus further limiting the scope of the treaty.

The Nagoya Protocol extends beyond plant genetic resources for food and agriculture. It applies more broadly to genetic resources, including those used for industrial purposes, and also applies to the traditional knowledge associated with genetic resources. The Nagoya Protocol is an international instrument that establishes global standards relating to utilization of genetic resources and aspects of traditional knowledge. It allows for the monitoring of utilization of genetic resources based on establishment of designated checkpoints and use of internationally recognized certificates of compliance. This is especially relevant for access to listed plant genetic resources for non-food based uses, as they are governed by the domestic ABS system if one is in place. Traditional knowledge is similarly governed by the domestic ABS mechanism even if it includes traditional knowledge related to a PGRFA, such as farmers’ uses and conservation strategies in agriculture which is preempted by the notion of farmers’ rights.

The multilateral system established under the ITPGRFA is different from the ABS system that arises from the CBD. It involves use of a standard material transfer agreement (SMTA) governing access and establishing mutually agreed terms when dealing with a common pool of genetic resources. Benefits arising from the utilization of PGRFA are not shared with the provider but rather, they go towards a common fund to support indigenous and local communities. On the other hand, under the ABS system practiced under the CBD, benefits are expectedly to be directly shared with the provider.

Where a country is not a party to the IT, then the Nagoya Protocol will apply to all transactions involving genetic resources if that country is a party to the Protocol. This means that access to plant genetic resources for food and agriculture will likely be regulated based on the bilateral approach established under the Nagoya Protocol, requiring prior informed consent and mutually agreed terms.

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Vipal Jain is a Research Assistant with ABS Canada. Her interest in international intellectual property, biotechnology and sustainable development brings her to ABS. Vipal is currently a second year JD law student at the University of Ottawa. She is also the co-founder of BioTown, a nonprofit organization in Ottawa that encourages accessible science. Vipal holds a Bachelor of Science with a specialization in genetics and biotechnology from the University of Toronto.